Amendments to Chapter 209.0051 make significant changes to the “open meetings” law for subdivisions (not condominiums). Due to its importance, I review the entire statute as now in effect. Homeowners, and associations, should study this now!
Initially, 209.0051(a) continues to exempt any association that is subject to Government Code 551.0015. That exception merits expanded use, but currently applies rarely. Also, developers keep their partial exception to these requirements in 209.0051(i). This merits reconsideration in future legislation.
Changes in 209.0051(b) do not alter the definition of a “board” meeting. Future legislation might clarify this.
The basic mandate for open meetings remains in 209.0051(c). The categories of actions for executive session remain unchanged, as do the mandates to report on executive sessions.
New is a detailed provision, in 209.0051(c-2) that – for better or worse – allows board meetings to be “held by electronic or telephonic means” if specific conditions are all met:
- each board member may hear and be heard by every other board member;
- except for any portion of the meeting conducted in executive session:
- all owners in attendance at the meeting may hear all board members; and
- owners are allowed to listen using any electronic or telephonic communication method used or expected to be used by a board member to participate; and
- the notice of the meeting includes instructions for owners to access any communication method required to be accessible under Subdivision (2)(B).
Existing requirements to keep minutes and make them available, to give notice of meetings, for homeowners to keep their e-mail address up-to-date, and for recessing meetings remain in Chapter 209.0051(d, e, f, & g). However, there are two changes, of major import, to the law governing board action taken outside of a meeting.
First, 209.0051(h) now provides authority for boards to act outside of a meeting “if each board member is given a reasonable opportunity to express the board member’s opinion to all other board members, and to vote.” That could, if unrestricted, gut the whole point of the “open meetings” provision, leaving only the duty to report results at later meetings.
However, 209.0051(h) now includes a significantly expanded list of activities for which an “open meeting” is now required for the board to “consider or vote on”. The full list follows, paragraphs (9) to (15) being new:
- damage assessments;
- initiation of foreclosure actions;
- initiation of enforcement actions, excluding temporary restraining orders or violations involving a threat to health or safety;
- increases in assessments;
- levying of special assessments;
- appeals from a denial of architectural control approval;
- a suspension of a right of a particular owner before the owner has an opportunity to attend a board meeting to present the owner’s position, including any defense, on the issue;
- lending or borrowing money;
- the adoption or amendment of a dedicatory instrument;
- the approval of an annual budget or the approval of an amendment of an annual budget that increases the budget by more than 10 percent;
- the sale or purchase of real property;
- the filling of a vacancy on the board;
- the construction of capital improvements other than the repair, replacement, or enhancement of existing capital improvements; or
- the election of an officer.
Of course, boards remain empowered to hold open meetings on more subjects than the list.